Articles Posted inGeorgia Trial Lawyers Association

We are about to reach the 100 day milestone of the current POTUS, and with that come many criticisms and many “attaboys.” It’s all in the eye of the beholder. This POTUS is the first in a string NOT to be a lawyer. When you think about that, the fact that he is not a lawyer, nor has he ever served in any public service role, means he has had no formal training in the Constitution nor in either drafting, interpreting or applying legislation. These are things that lawyers do every day, day in and day out. That is pretty obvious. What may not be at the forefront of your mind when thinking about lawyers is the professionalism displayed by lawyers every day. Not only must lawyers as professionals in the practice of law abide by certain formal ethical rules and rules of professionalism, they must also insure they practice with a certain courtesy and respect for their opponents and for the judicial system that other people, say, real estate tycoons, for example, do not. So as we approach that 100 day marker for the POTUS, I have been thinking of a few things that POTUS, a non-lawyer, so far has failed to demonstrate consistently in the last 100 days and what he could learn from lawyers…things I think would naturally serve him, his administration and most importantly, the people of the United States, well.

Be Impeccable With Your Word. A lawyer’s ability to advocate successfully for his or her client is only as good as his or her credibility, and credibility directly flows from being able to count on what a lawyer says as being true. No half-truths, no hedging the truth, no embellishment to make your facts seem just a little bit better than they really are. A lawyer must always tell the truth in all dealings or risk complete ineffectiveness, or worse, a client’s, or an opposing counsel’s, or a judge’s (gasp!) not being able to believe what the lawyer is telling them. Once that happens, all is lost. You may have heard this referred to as “your word is your bond.” The Cambridge Dictionary defines this as “If someone’s word is theirbond, they always keep a promise.” Nothing is truer for a lawyer. Lawyers even have a duty of candor to the court to inform the court of case law or precedent that goes againsttheir client’s position in court. Can you imagine a salesperson having to tell a customer that he could actually sell a car to you for less than what you, the customer, is willing to pay for it? Of course not, but lawyers are required to act with that much candor and honestly at all times before the Court. The ideals of professionalism in the practice of law are aimed at ensuring our profession remains a “high calling” and not “just a business like any other,” enlisted in the service not only of the clients, but of the public good as well. “A Lawyer’s Creed,” developed by the Chief Justice’s Commission on Professionalism (the Commission), states it as thus: “To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice. ”

Never Take Anything Personally. I think this is good advice for everyone, but especially lawyers must behave like this and are expected to do so. Trial lawyers must always do their jobs in an adversarial situation. By definition, there will also be another lawyer representing the opposing party in a lawsuit trying his or her level best to prevent you from succeeding. Think how hard this is! If we were talking about the profession of medicine and using surgery as our analogy, no other surgeon comes into an operating room to try to prevent the operating surgeon from performing the surgery successfully! No other doctor comes in and tries to kill your patient! But that is precisely what occurs in the practice of law. Every time I represent a client there is an opposing counsel trying to prevent me from succeeding. It’s pretty stressful, but would be even worse if the lawyer takes his opposing counsel’s efforts personally. The opposing counsel is just trying to do his job well, too. That’s all. And The Lawyer’s Creed requires lawyers to promise this to opposing counsel: “To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship.” We also are required to make this promise: “To the opposing parties and their counsel, I offer fairness, integrity and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.” Temper tantrums and other demonstrations of pettiness and “unsportsmanlike conduct” have no place in the legal profession. Following a trial, adversaries shake hands, regardless of the outcome. I have never had a problem shaking the hand of my able adversary when he or she has conducted himself or herself with integrity and professionalism throughout the litigation. It honors our justice system and your opponent. As Shakespeare wrote in “The Taming of the Shrew,” “do as adversaries do in law, strive mightily but eat and drink as friends.”

When Past President Edward Krugman handed me the LawyersClub of Atlanta gavel last May, I told you then I had some pretty big shoes to fill. And that is where I find my thoughts now as I pen my last President’s Message as your President…contemplating the shoes of others I have stood in during the last 27 years of practicing law.

I am here standing in the shoes of so many other lawyers who led and cleared the path for me and for you. As we gather in May to honor our 50-year members, which has always been one of my favorite meetings, it is appropriate that we consider those who blazed the trail before us, branch by branch, so that our path might be just a bit smoother. Here are just a few examples of Georgia Trailblazers, in whose shoes I have stood the last 27 years:

Chief Justice Carol Hunstein-1st woman Chief Justice of the Georgia Supreme Court. Justice Hunstein contracted polio when she was two, survived her first bout of bone cancer at age four, lost her mother at age 11, married at 17, became a mother at 19, and a single mother by age 22. That same year, Justice Hunstein lost a leg to cancer and was told by doctors she had only a year to live. But that didn’t stop her from getting her law degree. She opened a private law practice in Decatur in 1977 and, spurred on by a trial judge who repeatedly called her “little lady” in open court, Justice Hunstein decided to run for the bench. She defeated four men and in 1984 became the first woman elected to the DeKalb County Superior Court. She has served on the Georgia Supreme Court since 1992.

Judge Anne Workman: When she graduated from Emory Law School less than ten percent of the class of 1972 – one hundred in number – were women, as were less than four percent of all lawyers in the nation. The downtown law firms came to the Emory campus for employment interviews with the male students, but would not interview the women students at all. Judge Workman’s first attempt to get a legal job after law school was fruitless, but she recounted it very humorously. She had always loved criminal law and wanted to be a prosecutor when she graduated from Emory. She approached the district attorney at the time about employment in his office. Judge Workman recalled: “He told me in a very matter of fact manner that there were some places a woman did not belong and that a courtroom was one of them. But that was alright because I could have a baby and he couldn’t. It was not the reasoning I had hoped to hear; but in one way it was helpful as it provided a considerable amount of focus and direction to me to prove him wrong. You take motivation where you find it. It took twelve years, but in 1985 when I was sworn in as a state court judge, I saw him and reminded him of our long-ago conversation. I remarked that I must belong in a courtroom now because it had my name on it.”

Sr. Judge Horace Ward– In 1979, Judge Horace Ward became the first African American federal judge in Georgia, having been nominated by President Jimmy Carter. He had previously served in the Georgia State Senate and as a State Court and Superior Court judge in Fulton County. Since 1993, Judge Ward served the Northern District of Georgia in senior status. He is also well known in Georgia history from his efforts to gain admission to the then-segregated University of Georgia Law School in the 1950s. For years, the Board of Regents denied Judge Ward admission to the law school, stating that the fact that no black had ever been admitted to the university was merely coincidental. Meanwhile, the Board of Regents decided to “modify” the admissions criteria by requiring that candidates take an entrance exam and that they get two additional letters of recommendation-one from a UGA law school alumnus and the other from the superior court judge in the area where the applicant resided. Judge Ward filed suit against the Board of Regents to gain admission, which, after years of delay, was eventually dismissed on the basis that Judge Ward had “refused” to reapply under the new admissions guidelines (which Ward’s attorneys had argued was yet another ploy to keep Ward out). Judge Ward decided not to appeal and attended law school at Northwestern University, from which he graduated in 1959. In what can only be described as a moment of poetic justice, Judge Ward was a member of the legal team representing Charlayne Hunter and Hamilton Holmes when they were admitted as the first African American students at UGA, thus ending 175 years of segregation at the university.

Judge Clarence Seeliger– Judge Seeliger was a trailblazer for racial justice and equality. He hired the first African American employee of DeKalb County State Courts and courageously removed the Confederate flag from his courtroom at great personal risk. Judge Seeliger made it clear that no one, not even judges, was above the law. Dr. Martin Luther King, Jr. said, “There comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must take it because conscience tells him it is right.” Seeliger’s life embodies that principle.

Each time a barrier is removed in the leadership of our courts, our Legislature, our profession, a door opens to a new generation of potential great trailblazers, which might include the next Horace Ward, the next Carol Hunstein, the next Clarence Seeliger or the next Anne Workman. Some very big shoes, indeed.

Please be sure to join us on Wednesday, May 20, as we honor our 50 year members who, also, have some pretty big shoes for us to fill. Come and celebrate 17 lives well lived and 17 legal paths blazed. Our 50-year members stand as beacons to promote the cause of justice, to respect the rule of law and to protect the rights of all citizens of the State of Georgia. In this example we should all take pride.

Did you know there is underway right now an effort in the Georgia Senate to eliminate your Seventh Amendment right to a jury trial in medical malpractice cases? That’s right. A bill has been introduced (again), SB 86, that seeks to eliminate jury trials in medical malpractice claims. This bill was introduced by Senator Brandon Beach from Alpharetta, and this is, at least, the second time around for the bill. Last year the same bill was introduced and a coalition made up of odd bedfellows, the Georgia Trial Lawyers Association (GTLA) and the Medical Association of Georgia (MAG), opposed it and it died a slow death. Like Lazarus, it has now been resurrected.

Supporters of the bill make the wild claim that this bill would reduce so-called “defensive medicine” where doctors supposedly order unnecessary medical tests. I find such a claim outrageous and offensive. Doctors should, likewise, be offended by this strategy. I have talked with many doctors and taken many depositions of doctors. I have never found them to order what they know are unnecessary medical tests. For a doctor to order what he or she knows to be an unnecessary test (and get paid for it, by the way) would be fraudulent and would violate every ethical oath the physician has ever taken. So that cannotbe the real issue with this piece of legislation.

Who is behind it? Not the doctors themselves, as evidenced by the opposition of MAG, the doctors’ professional association. Not the citizens of Georgia. There has been no rallying cry that doctors shouldn’t be held accountable as every other citizen may be with he or she commits negligence that results in injury to someone. There have been no “runaway” verdicts in Georgia, either. Statistics show that doctors and hospitals win almost 85%-90% of all medical malpractice trials in Georgia.

On May 10-11 I’ll be at the Georgia Trial Lawyers Association (GTLA) Annual Seminar and Convention held at the Loews Hotel in Midtown Atlanta. This is ground zero for the best trial lawyers in the State of Georgia. I am speaking on the power of cognitive neuroscience use at trial. I will also be introducing our Thursday luncheon speaker, Professor Curtis Wilkie, author of Fall of the House of Zeus, about the rise and fall of Dickie Scruggs who was once, arguably, the most powerful trial lawyer in the world but who is now serving time in prison. I will also be introducing our Friday luncheon speaker, Dr. Paul Voss, Founder of Ethikos, Inc. who will speaking about the ethics of decision making.

I always enjoy the fellowship of my fellow Georgia Trial Lawyers and find simply being with them inspires me to continue to fight the good fight, finish the race and keep the Faith.

GTLA Welcomes New President, Chris Clark of Macon, Georgia
GTLA wishes to thank out-going President Fred Orr for his wisdom and vision over the past year. With him at the helm, many things have been accomplished (including this new website). With Fred as the Immediate Past President, GTLA eagerly welcomes Chris Clark to his new role. Chris’ intelligence, leadership style and passion for the Civil Justice System will only serve to make this great organization stronger.

At the President’s Gala on Friday night, 250 members of GTLA watched as Fred Orr handed the reins over to Chris Clark– both of whom received a standing ovation. Congressman Bruce Braley of Iowa, a trial lawyer, a champion for justice in Washington DC and a Past President of his state’s TLA entertained and enlightened the crowd with his tales of courage in politics as the keynote speaker. The evening ended with incredible comaraderie found only at GTLA events.

It seems that in New Jersey, physicians are forcing their patients to give up their rights to sue the doctor in the event of malpractice before the doctor will even agree to see the patient. To read the full article, click here.

Let’s hope this doesn’t make its way to Georgia…otherwise, hundreds of Georgia citizens will be involuntarily forced to give up their constitutional rights, under the Georgia Constitution, to hold a doctor accountable for that doctor’s negligence or carelessness. Unfortunately, noneconomic damages in Georgia are already capped at $350,000.00, a drop in the bucket if you are talking about someone’s life. The Georgia General Assembly decided that was the value of the life of a Georgia citizen, their constituents, when it passed SB3 in 2005. My guess is that if pressed on the issue, no Georgia Legislator would dare agree that the value of the life of one of his sons or daughters amounts only to a mere $350,000.00. But that’s what the Georgia Legislature has told Georgia citizens their lives are worth. The largest medical malpractice insurer in Georgia, MAG (Medical Association of Georgia) Mutual, promised to lower their malpractice insurance premiums in exchange for SB3 and a cap on damages, but MAG hasn’t lowered premiums yet, two years after the passage of SB3, and I wouldn’t hold my breath waiting for MAG to do so anytime soon.

And let’s think about this…what kind of healthcare do you think you’re going to get if the doctor knows he won’t have to responsible for his mistakes?